Walker v. Graham

• Decision Date: 17 May 1934
• Docket Number: 6 Div. 437.
• Citation: 154 So. 806,228 Ala. 574
• Parties: WALKER et al. v. GRAHAM et al.
• Court: Alabama Supreme Court

154 So. 806

228 Ala. 574

WALKER et al. v. GRAHAM et al.

6 Div. 437.

Supreme Court of Alabama

May 17, 1934

Appeal from Circuit Court, Jefferson County; T. J. Bedsole, Judge.

Action for trespass by L. C. Walker and W. L. Walker, partners doing business under the firm name of Five Mile Barbecue Stand against R. J. Graham, and the Fidelity & Deposit Company of Maryland. From a judgment for defendants, plaintiffs appeal.

Reversed and remanded.

W. A Denson, of Birmingham, for appellants.

Wilkinson & Wilkinson, of Birmingham, for appellees.

KNIGHT Justice.

After successive amendments by striking parties defendant, the action stood against the appellant R. J. Graham and the surety on his official bond, the Fidelity & Deposit Company of Maryland. Graham, at the time of the occurrences complained of, was a deputy sheriff of Jefferson county.

The suit was instituted to recover damages for an alleged trespass, involving a wrongful search of appellants' premises. While the complaint was amended a number of times no amendment was made, or rather allowed, which changed the form of the action.

Upon the trial, and before the evidence was concluded, the plaintiffs undertook to further amend their complaint by adding an additional count-count 4-but on objection of defendants the court declined to permit this amendment to be made.

Count 4 offered by way of amendment, claimed damages of the defendant Graham, and the surety on his official bond, for wrongfully, maliciously, and without probable cause therefor, procuring the issuance of a search warrant to search the premises of the plaintiffs, and the wrongful search thereof. Divers acts of humiliation and aggravation, in the manner in which the search was made by the defendant Graham, are averred in the complaint.

Count 4, under the facts averred therein, charged a trespass to realty, and stated a cause of action.

The defendant filed pleas of the general issue, and justification under legal process.

The plaintiffs in the court below demurred to defendants' special plea setting up justification under legal process. This plea averred that the trespass complained of was made by the defendant Graham in executing a search warrant issued by J. G. Brooks, ex officio judge of the Jefferson county court of misdemeanors; that in the execution of the warrant the said defendant entered the premises of the plaintiffs and searched the same, but did not use any more force than was necessary to execute the process; that "his conduct in searching said premises was not wrongful or unlawful."

Whatever objections there may be to the sufficiency of the defendants' plea of justification, this plea was not subject to any ground of objection assigned thereto.

Section 10197 of the Code provides:

"Whenever it appears that the process is reguar on its face, and is issued by competent authority, a sheriff or other ministerial officer is justified in the execution of the same, whatever may be the defect in the proceeding on which it was issued."

This statute is but declaratory of the common law which afforded immunity from civil actions for damages to sheriffs and other ministerial officers in the execution of processes of courts of competent jurisdiction. This section was designed, as said in the early case of Wilson v. Sawyer, 37 Ala. 631, "to give legislative sanction to the just and salutary rule, adopted by some courts independently of legislation, that ministerial officers are not responsible for executing any process regular on its face, if the court from which it issues has general jurisdiction to award such process, although it had not jurisdiction in that particular case." To the same effect is our holding in the following cases: Baker v. Sparks, 202 Ala. 653, 81 So. 609; Ward v. Deadman, 124 Ala. 288, 26 So. 916, 82 Am. St. Rep. 172; Clark v. Lamb, 76 Ala. 406; Brown v. State, 109 Ala. 70, 20 So. 103; Ferguson v. Starkey, 192 Ala. 471, 68 So. 348; Spear v. State, 120 Ala. 351, 25 So. 46; McGill v. Varin, 213 Ala. 649, 106 So. 44; King v. Robertson,

227 Ala. 378, 150 So. 154.

While it may be that good pleading would suggest that the process relied upon for justification should be set forth in the plea, yet the demurrer does not take this ground; nor do we commit ourselves to the proposition that pleas of justification under legal process would be subject to demurrer for failing to set forth the process in hæc verba. This question is not here presented.

Our conclusion is, as above indicated, that the plea of justification was not subject to any of plaintiffs' stated grounds of demurrer, and the court committed no error in overruling the same.

After the court had overruled demurrer to defendants' special plea, the plaintiffs filed a replication thereto in the following language:

"Now come the plaintiffs, and for replication to the defendants' plea No. 3, says (say) the defendant R. J. Graham did swear out said warrant described in plea No. 3 before said J. G. Brooks, ex officio judge of the Jefferson County Court of Misdemeanors, on, to-wit, the 25th day of October, 1930, well knowing that the facts set forth in said warrant, and to which he swore, were false, and without any foundation in fact, and that the said R. J. Graham swore out said warrant solely out of malice and ill-will toward the plaintiffs, and for the purpose of injuring them in their business, well knowing at the time that the matters and things which he swore to in said warrant were untrue and without any foundation of fact."

To this replication the defendants demurred. It is here insisted by the appellees that the replication is a departure from the cause of action stated in the complaint, and, further, that the replication presents an immaterial issue.

We do not think there is any merit whatever in the contention that in their replication the plaintiffs departed from the case made by the original complaint in the cause.

In their complaint, the plaintiffs base their cause of action upon a trespass committed by the defendant Graham upon their property. The defendants attempted to justify their action by pleading that the said Graham was acting at the time under legal process. To this plea, the plaintiffs replied by saying, in legal effect, that the process, search warrant while fair or legal on its face, was a fraud upon the jurisdiction of the officer who issued it, in that the said Graham procured it to be issued upon a state of facts, known by him at the time to be false, and without foundation in fact, and that the warrant was procured by said Graham "solely out of malice and ill-will toward the plaintiffs, and for the purpose of injuring them in their business, well knowing at the time that the matters and...